Estate Planning Law Report: June 2013 What is a Prehospital Medical Care Directive?

I have written in the past about the prehospital medical care directive, also known as a “do-not-resuscitate” instruction or “DNR.” I have been asked about it a number of times recently, perhaps indicating greater awareness of, and interest in, this particular creature of Arizona law. The law on it is actually quite clear, although it has in the past seemed that relatively few people are aware of it. As I said, perhaps that is changing.

The term “prehospital medical care directive” is actually not very accurate, since the directive deals only with cardiopulmonary resuscitation in the event of cardiac or respiratory arrest. The term “do not resuscitate” is actually a much more accurate description of what it’s about.

Section 36-3251 of the Arizona Revised Statues lays out the basic terms for a prehospital medical care directive in pretty straightforward terms:

Notwithstanding any law or a health care directive to the contrary, a person may execute a prehospital medical care directive that, in the event of cardiac or respiratory arrest, directs the withholding of cardiopulmonary resuscitation by emergency medical system and hospital emergency department personnel.

. . .

Authorization for the withholding of cardiopulmonary resuscitation does not include the withholding of other medical interventions, such as intravenous fluids, oxygen or other therapies deemed necessary to provide comfort care or to alleviate pain.

The next part of the statute specifies what the prehospital medical care directive must say, and specifies that it must be on orange paper:

A prehospital medical care directive shall be printed on an orange background and may be used in either letter or wallet size. The directive shall be in the following form:

. . .

In the event of cardiac or respiratory arrest, I refuse any resuscitation measures including cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, defibrillation, administration of advanced cardiac life support drugs and related emergency medical procedures.

After some spaces for the signature and personal identifying information of the person adopting the directive, the form then requires a signature by a licensed health care provider after the following statement:

I have explained this form and its consequences to the signer and obtained assurance that the signer understands that death may result from any refused care listed above.

Finally, the form requires the signature of a witness who must attest that he or she was present when the document was signed and that “the patient then appeared to be of sound mind and free from duress.”

The statute also says that a person who has a valid prehospital medical care directive “may wear an identifying bracelet on either the wrist or the ankle,” which “shall be substantially similar to identification bracelets worn in hospitals [and] shall be on an orange background and state . . . in bold type . . . Do Not Resuscitate” with the person’s name and the name of their physician. So if you have a signed prehospital medical care directive that meets the requirements of the statute, you can also wear a bracelet to let medical care providers know that you don’t want to be resuscitated.

According to the legislative history, the statute that provides for the prehospital medical care directive was first adopted in 1992. I believe that I can count on my fingers and toes the number of times that I have prepared a prehospital medical care directive in the last twenty-five years. Usually the people who ask about it decide they don’t want it once I explain what it means.

What’s the practical effect of one of these, if you do sign one? Here’s how I describe what the prehospital medical care directive means: it means that when the paramedics come to your house and find you unconscious and not breathing, as soon as they see the orange “DNR” on your refrigerator, they do nothing but turn around and leave.

Is a DNR a good idea? It’s a personal choice, of course. There are perfectly legitimate reasons why some people think it is a good idea. Usually, however, the people I talk to are more comfortable with a living will, which is a more general statement to control the health care treatment decisions that can be made on behalf of the person signing the living will. I will revisit the particulars of the Arizona living will in a future report.

IS IT TIME FOR A REVIEW OF YOUR ESTATE PLAN? ANOTHER FACTOR

Alert reader Rob Mason (financial advisor at Merrill Lynch) pointed out that there was a change in federal estate tax law that took effect at the beginning of this year that could have a significant impact on estate planning for married couples. That change is the “portability” of the estate tax unified credit from one spouse to another. The concept was introduced in the tax code two years ago, but was made permanent only at the beginning of this year.

The concepts of the estate tax unified credit and its portability are too complex to try to explain in this limited space, but here’s a thumbnail sketch: each individual has the ability to transfer approximately $5 million (the so-called “unified credit amount”) to his or her heirs free of federal estate tax. “Portability” means that if a husband or wife dies with an unused unified credit amount, that amount can be used by the surviving spouse to increase his or her unified credit amount.

I told you it’s not easy to explain in this limited space. If you want to know more about it, call me and I’ll explain it to you. I’m not completely sold on the idea, mostly because I don’t believe Congress when they say this “portability” is now permanent. It is, however, something that should be considered, along with the other recent changes in federal estate tax law, when deciding if it’s time for a review of your estate plan.

QUOTE OF THE MONTH

If you live to be one hundred, you’ve got it made. Very few people die past that age.

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